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TMI Blog2023 (1) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 dismissing the miscellaneous appeal filed under Section 22 of the U.P. Trade Tax Act, 1948 (hereinafter called as "Act of 1948") for rectifying its earlier order dated 31.8.2004. 2. Through these revisions, the assessee has tried to raise following questions of law : "i. Whether the appeal for rectification under Section 22 of the U.P.Trade Tax Act, 1948 is maintainable before the Trade Tax Tribunal in a case where its order in assessment proceedings have been upheld in a revision before the Hon'ble High Court under Section 11 of the U.P. Trade Tax Act? ii. Whether the Tribunal is competent to rectify the order of assessment by exercising powers under Section 22 of the U.P. Trade Tax Act, 1948 on the basis of declaration of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. During pendency of the special leave petition, in another matter of Jhunjhunwala & others vs. State of U.P. & Others 2007(41) STJ 26, the Apex Court on 22.9.2006 pronounced the judgment dealing Section 2(ee)(ii) of the Act of 1948. Subsequently, the revisionist withdrew his appeal which was dismissed as withdrawn on 19.4.2007. 6. On 25.6.2009 the assessee moved a rectification application under Section 22 of Act of 1948 before the Tribunal relying upon the decision of Jhunjhunwala & others (supra) which was registered as Misc. Appeal No.10 of 2009. The said appeal was dismissed vide judgment and order dated 23.9.2009 hence the present revisions. 7. Sri Nikhil Mishra, Advocate, holding brief of Sri Swapnil Rastogi, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictions on the power of review under O. 47 R. 1 C.P.C. do not hold good in the case of S. 254(2) and S. 154 of the Income Tax Act. Even so, a subsequent binding decision taking a different view in law was held to be a good ground for review which will constitute an error apparent on the face of the record within the meaning of O. 47 R. 1 C.P.C. (See-Pathrose v. Kuttan alias Sankaran Nair (1969 KLT 15); and Chandrasekharan Naiv v. Pumshothaman Nair (1969 KLT 687). These two decisions were overruled by a Bench of this Court, in Board of Revenue v. Akbar Sahib (1973 KLT 497). But, the Supreme Court reversed the Bench decision, aforesaid, holding that the Bench was not justified in refusing to entertain the review petition on supertechnical con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by advancing argument etc. cannot be treated as error apparent for the purpose of rectification under the relevant section. According to him, the judgment of Hon'ble Apex Court in Jhunjhunwala & others (supra) has to be factually determined in case of the assessee, as to whether a seller is a manufacturer or not and therefore, it leaves a Court for further interpretation and ascertainment. Reliance has been placed upon decision of Apex Court in Deva Metal Powders Pvt. Ltd. vs. Commissioner, Trade Tax, U.P. (2008) 2 SCC 439. 11. I have heard the counsel for the parties and perused the material on record. 12. A short question, which arises for consideration is :- "whether in the garb of rectification under Section 22, the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that an error apparent on the face of the record for acquiring jurisdiction to affect rectification must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. 17. In Deva Metal Powders Pvt. Ltd. (supra) the Apex Court while considering the provisions of Section 22 of the Act of 1948 held that a decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. Relevant paras 10 and 11 of the judgment are extracted hereas under : "10. A bare look at Section 22 of the Act makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of Section 22, the mistake must exist and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by this Court in Master Construction Co. (P) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. 11. "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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